Booth v. Riverside Marine - supp
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Cite as 2010 Ark. App. 366 (supp. opinion)
ARKANSAS COURT OF APPEALS
DIVISIONS I and II
No. CA09-887
JUANITA P. BOOTH, INDIVIDUALLY
AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF PATRICK BOOTH
APPELLANTS
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
[NO. CV 03-9863]
V.
HONORABLE TIM FOX, JUDGE
RIVERSIDE MARINE
REMANUFACTURERS, INC.
APPELLEE
Opinion Delivered JUNE
16, 2010
SUPPLEMENTAL OPINION UPON
DENIAL OF REHEARING
DAVID M. GLOVER, Judge
On April 28, 2010, we handed down an opinion in this case that affirmed the circuit
court in all respects. Booth v. Riverside Marine Remfgrs., Inc., 2010 Ark. App. 366, ___ S.W.3d
___. One of the points on appeal was the circuit court’s decision to award appellee
approximately $41,000 in attorney’s fees. This issue is the subject of the petition for rehearing.
We deny rehearing but issue this supplemental opinion to address appellants’ argument on
rehearing.
On appeal, appellants argued that appellee was not entitled to any attorney’s fees for
work performed on the two prior appeals in this case or for work prior to the second appeal.
We held that the argument was not preserved for review because it had not been presented
Cite as 2010 Ark. App. 366 (supp. opinion)
to the circuit court. 2010 Ark. App. 366 at 13, ___ S.W.3d at ___. In their petition for
rehearing, appellants assert that their argument was presented to the circuit court in their brief
in support of their response to appellee’s motion for fees. This brief was, as appellants
acknowledge, not included in their addendum. Nevertheless, appellants argue that we should
review their argument on the attorney’s fee issue on the merits because the brief was not
required to be included in the addendum by the version of Supreme Court Rule 4-2(a)(8)(A)
that was in effect at the time appellants filed their brief.1 We must decline the invitation.
It is the appellants’ burden to bring up a record sufficient to demonstrate error. Judkins
v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007). With the exception of materials
included in the addendum, the record on appeal is confined to that which is abstracted.
Huddleston v. State, 339 Ark. 266, 273, 5 S.W.3d 46, 50-51 (1999). We will not examine the
transcript of a trial to reverse a circuit court, although we will do so to affirm. Greene v. Pack,
343 Ark. 97, 32 S.W.3d 482 (2000). Although Rule 4-2(a)(8) may not have required
appellants to include their brief in the addendum, there was nothing preventing them from
doing so. Moreover, including the brief in the addendum would have facilitated our
understanding of the issue and enabled us to see that the issue had been properly preserved.
Rehearing denied.
VAUGHT, C.J., GLADWIN, ROBBINS, KINARD, and GRUBER, JJ., agree.
1
Rule 4-2(a)(8)(A) was amended effective January 1, 2010, to require briefs relating to
motions to be included in the addendum. See In re Arkansas Supreme Court and Court of
Appeals Rules 4-1, 4-2, 4-3, 4-4, 4-7, and 6-9, 2009 Ark. 534 (per curiam).
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Cite as 2010 Ark. App. 366 (supp. opinion)
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